Feetham v. Jackson County

In determining the scope or extent of a nonconforming use right, the relevant legal question is the extent of the activity that is actually occurring on the date when the use becomes nonconforming, with an allowance for changes in the volume or intensity of the use if they are attributable to growth or fluctuations in business conditions.

Petitioner appeals a hearings officer decision verifying medical marijuana production on his property as a nonconforming use. Petitioner’s property is zoned Rural Residential (RR-5). Petitioner has been growing medical marijuana on his property since 2008. In March 2016, the county amended its Land Development Ordinance (LDO) to prohibit the production of marijuana in the RR-5 zone. In August 2016, petitioner applied to verify a nonconforming use right to grow medical marijuana on his property. The county planning staff denied petitioner’s application, which petitioner appealed to the county hearings officer. The hearings officer concluded that petitioner had established a nonconforming use right to grow eighteen mature medical marijuana plants on his property. Petitioner subsequently appealed.

In a single assignment of error, petitioner argues that the evidence in the record establishes a nonconforming use right to grow 60 mature medical marijuana plants on his property. In support of his argument, petitioner cites copies of registry identification cards that identify his property as a medical marijuana “grow site” under OAR 333-008-0010(28). LUBA rejects petitioner’s argument. In determining the scope or extent of a nonconforming use right, the relevant legal question is the extent of the activity that is actually occurring on the date when the use becomes nonconforming, with an allowance for changes in the volume or intensity of the use if they are attributable to growth or fluctuations in business conditions. Because the number of registry identification cards that identify a property as a “grow site” is not conclusive in determining the extent of the activity that was actually occurring on the date when the use became nonconforming, petitioner’s assignment of error does not provide a basis for reversal or remand of the decision. AFFIRMED.